The act commonly known as ObamaCare and the portions of a subsequent act known as the Reconciliation Act are lengthy and extensive. A number of constitutional issues are lurking regarding the two acts. It isn’t possible to deal with all of them here, but I would like to discuss those issues I think have the greatest chance of judicial success. (For discussion sake, hereafter I am dealing with both acts in the singular — “ObamaCare.”)

Having said that, I’d like to note that I had hoped the Congress would have considered these matters seriously before voting. The repeal of the legislation would obviate the need for yet another bitter court fight which places the U.S. Supreme Court in the position of having to resolve something a more responsible legislature with greater respect for — and knowledge of — the Constitution would have resolved itself. (But see Congressman Phil Hare for an example of how little regard he has for his duty to uphold the Constitution.)

While there is substantial reason to believe that by running on a platform of repeal the Republicans may retake the majority in the House of Representatives, it is unlikely that they will regain the majority of the Senate in 2010. That means that any effort to repeal all or portions of ObamaCare will be scotched in the Senate. Even if more Republicans should win in the Senate and are joined by enough Democratic senators to pass a Republican House effort, it is hard to see how an Obama veto could be overridden until after the 2012 elections (when we hope a new president will be elected).

Given these political realities, we must simultaneously consider the possibilities of a judicial challenge. There are already 13 state attorneys general filing a singular petition and one separate filing by the attorney general for the state of Virginia. The Thomas Moore Law Center (TMLC) has also filed suit on behalf of individuals who refuse to purchase health insurance. In the linked posting, Ilya Somin of the Volokh Conspiracy said:

The little-known TMLC case could turn out to be important if the states’ challenges to the individual mandate are dismissed for lack of standing or on other procedural grounds that may not apply to individual citizens who (unlike the states) are directly subject to the mandate.

The Tenth Amendment to the Constitution, part of the Bill of Rights, reads very simply:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

To be sure, as many commenters correctly observe, the separation of powers between the states and the federal government is vanishing as the federal government dictates many things to the states through a variety of means. Through an expansive reading of the Commerce Clause, which gives the federal government power over the states to regulate matters in interstate commerce, Congress and the courts have justified most of this overreach.

But as Professor Jonathan Turley observes, there nevertheless remain some limits imposed on the federal government by the federal structure of our Constitution. ObamaCare seems surely to have exceeded those limits in its demand that each person purchase health insurance — the “individual mandate” provision:

Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter. [Snip]. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.

In 1995, for the first time since the Depression, the Supreme Court ruled that an act of Congress — the Gun Free School Zones Act — violated the constitutional enumeration of powers because the conduct regulated did not affect interstate commerce (United States v. Lopez), with Justice Rehnquist writing the opinion. The Supreme Court applied the reasoning of that case to another congressional act in 2000 in United States v. Morrison. Here, the Court ruled the federal government’s conduct was not warranted by reference to the interstate commerce clause and invalidated as unconstitutional provisions of the Violence Against Women Act.

Turley argues that while the question of state rights versus federal rights has been largely a partisan one where views on what is prohibited by the Tenth Amendment have been hypocritically based on the proponents’ take on the subject matter of the legislation, ObamaCare, if not checked by the courts, would be a death knell to the entire concept of federalism and an invitation to unlimited federal intrusion in our daily lives. Discussing a theoretical 18-year-old uninsured man, Turley observes:

Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.

Professor David Kopel at the Volokh Conspiracy notes that while some singular provisions of ObamaCare may pass constitutional muster — that is, come within the scope of federal reach, where existing precedents of the Court have held that scope to be constitutional — the requirement that each person obtain health insurance does not:

In contrast, the individual mandate to purchase health insurance is not. It “is unprecedented in our jurisprudence.” Romer v. Evans (1996). It is possible to make arguments for extensions of cases such as Wickard, Raich, and Sonzinsky in support of the mandate. However, such arguments are a plea for extending those cases, not for merely applying them. For example, an application of Wickard/Raich might be a law against a person manufacturing her own medicine at home, rather than purchasing the medicine through the federally controlled market.

No prior case stands for the proposition that Congress may use the interstate commerce power to order persons to buy a particular product, or may use the tax power to punish people for choosing not to purchase a particular product. I can imagine a judicial opinion that builds on the foundation of Wickard, Raich, and Sonzinsky, and extends those cases much further, in order to uphold the mandate. The Court might do so, but the Court would be doing much more than merely applying precedent.

23 Comments, 13 Threads

1.
Robbins Mitchell

Well,call me a cockeyed optimist,but I don’t see any way that SCOTUS can rule that the individual mandate is Constitutional…the real killer clause in the health care bill is the section that calls for a ‘penalty’ for those of use who will refuse to comply…that alone renders it a punishment without due process of law,and not a ‘tax’ that can be collected under the purview of the IRS for non-compliance…the ‘commerce clause’ may very well regulate commercial transactions between states or across state lines,but to suggest that it regulates what can only be called ‘non-commerce’ by in individual within a particular single state defies both law and logic

Of course you are correct in your evaluation of the laws constitutionality, or lack thereof. However, we have passed the tipping point at which the Court recognizes or even cares about such limitations on Govt power. A prime example is the destruction of political speech exhibited by McCain/Feingold. We are expected to by God do what they tell us to by God do!! Serfs have never held sway when they beseech their lord and masters. That’s why the worlds history is chock full of armed revolutions. We are approaching another. The tyrannical Govt no longer governs with the consent of The People, and the Gov’t officials must be replaced and punished for their malfeasance and Treason.

Yes, years after the fact, the Supreme Court finally got around to voiding large sections of McCain-Feingold. However, the Kelo decision regarding imminent domain is enough for me to not get my hopes up for the Supreme Court respecting the rights of individuals verses the government.

While I do NOT want to discuss the relative merits of the Australian and American health care delivery systems, there was a reference made to the 18 year old in a car accident and the costs being picked up by others.

Private health insurance should specifically EXCLUDE all payments for medical care relating to motor vehicle accidents. And the motor vehicle registration should include a no-fault cover of ALL personal injury related to the use of that vehicle. Not a presentation of insurance cover which can be cancelled. And there is no reason why that no fault cover can not be put out to auction by each state every six months. And include cover for vehicles where the registration has expired or canceled.

If nothing else this would reduce the financial liability of health insurers as the expensive costs of motor vehicle injuries would removed. The hospitals would be guaranteed that they would get fair payment for the care. And if not reduce the premiums – at least reduce the pressure to raise them.

Since many states do not require medical coverage on auto insurance and some states are no-fault and some are tort, each state would have to change their regulations. I would love to see that happen. I am a medical biller in a tort state and it can take months, even years to get payment which drives up costs as well. It was much easier when we were a no-fault state.

Here again, a member of the establishment urges us to wait and vote. That’s not good enough. These enablers better head for the hills, as the natives are restless and not inclined to put their faith in the same elite aristocraqcy that got us here. they are fighting back and trying to hold onto their perks. Charlie Crist is being vicous in FL.

Ms. Feldman:
“I think Professor Somin is right that there is every reason to believe that the administration will utilize everything at its disposal to prevent or delay the resolution of the pending cases in the hope that public opinion will shift and that this will affect the final resolution in its favor.”

Yes, get the livestock used to the yoke that has been placed around their necks and talk up the “bling factor” of the Federal plastic tag through their earlobes.

There IS a danger in this, since tyranny has always had it’s attractions for the masses…otherwise, why else would humans, time and again, have returned to the same gut-pile? As long as the kibble gets placed in their trough, I have little doubt that there are a sizable number of people out there who will be quite content with the threat of a government lien placed against them to ensure the continued maintenance of their carcasses.

When you think of ObamaCare, think of a herd of beef cattle contentedly grazing in a field next to a McDonald’s franchise.

“I prefer political resolution of this in any event. Register and vote out of office everyone who voted for this monstrosity, and support everyone who will work to gut or repeal it. A win at the ballot box is a better resolution than a hope and a prayer that the Supreme Court will do what it ought to and declare the act unconstitutional in sufficient time to prevent the destruction of our health care system and economy.”

No, I think I would like to see a SCOTUS decision knocking this down by a respectable majority, if not a unanimous decision, and for the following two reasons:

1) If this IS, as we feel, an unconstitutional usurpation of authority of the Feds, then it is too important an issue for the SCOTUS NOT to be heard from.
If they find a reason not to speak out about encroaching tyranny now, in it’s infancy, then when WILL they, if ever?
Think of how many citizens had been prosecuted, tried, and convicted by laws that were later adjudicated to be unconstitutional…what do we say to victims of past unjust Federal laws?

“Oops…sorry ’bout that!”

Scant and cold comfort. Better not to inflict that harm in the first instance than leaving it for posterity to apologize for it later.

2) If a thing can be legislated into being, and be legislated away, this leaves open the possibility that it can be re-instated by legislation once again.

To put it more simply, if we pitch it our the door, it might crawl back in through the window…and this is why a SCOTUS smack-down is important.
I haven’t seen many attempts by legislators to re-introduce school segregation or re-criminalize abortion at the Federal level.

I came up in the internet through pro gun-rights activism, and the recent Heller decision affirmed for us what was plain common sense to nearly all of us on that side of the issue…that the Feds and the States and other polises were plainly and clearly infringing on our RTKBA.
In the end, all the sophistry, mis-direction and rationalizations pretty much availed the other side naught.
But it must be acknowledged that it took from the Miller decision of the 1930′s until the Heller decision of 2008 for the SCOTUS to catch up and come down on the side of fairly plain language in the Second Amendment.

Do we wish to wait a similar period, and deal with each new future horror dreamed up by our representatives, “for our own good” in turn?

legislation of such length and complexity often contains a “severability clause” – a provision that if any portion of an act is found unconstitutional, the remainder will still stand. But ObamaCare apparently contains no such provision.

UPDATE
Reuters reports more states have joined the fight to have the Act declaed unconstitutional
MIAMI, April 7 (Reuters) – Five more U.S. states are joining a Florida-led group of states in a lawsuit challenging President Barack Obama’s overhaul of the U.S. healthcare system, Florida’s attorney general said on Wednesday. The joint lawsuit led by Florida and now grouping 18 states was filed on March 23 by mostly Republican attorney generals. It claims the sweeping reform of the $2.5 trillion U.S.healthcare system, pushed through by Democrats in the U.S. Congress after months of bitter partisan fighting, violates state-government rights in the U.S. Constitution and will force massive new spending on hard-pressed state governments.

I think the crux of the Feds case will rest on the Militia Act of 1792 in which the Federal Government ordered an emergency provision requiring that all citizens buy a musket and ammunition.

If they win on that then I think the next Republican congress and president should work to reinstate the Militia Act of 1792. Imagine the screams of terror from the left as they are all required to go out and buy a working firearm or suffer jail time.

That, too, is unconstitutional. The Second Amendment secures the right of individuals to keep and bear arms, but in no way requires that they do so. Coercing people to purchase and train in the use of firearms against their will, perhaps even against their religious or professional beliefs, is unconstitutional and immoral. It may be consistent with the Second Amendment, but it runs roughshod over the First and Fifth.

But if the SCOTUS finds the current mandate constitutional, then reinstating the Militia Act of 1792 WOULD be constitutional according to precedent.

The constitutionality of the Militia Act of 1792 has never been directly challenged, that I know of. But that act also had a laundry list of exemptions which the health insurance mandate does not.

But the biggest red flag against the Militia Act of 1792 being instructive to the current case is that the Militia Act first CONSCRIPTED the population into military service which gave the president authority to make such demands.

Wouldn’t it be wonderful if the SCOTUS finally reasserted itself and our Constitution and returned to the clear import and intent that the federal power over interstate commenrce is limited to state actions that erect protectionist barriers to free interstate commerce? Really, what the SCOTUS now calls the “dormant” commerce clause, under which the SCOTUS inappropriately takes upon itself to strike down such barriers, is all that the federal government should have the power to do. Any fair minded person knows that that power was never meant to go as far as Wickard, which upheld the federal government’s absurd power grab of telling people what food they can gorw in their back yards. SCOTUS it is time to grow a pair and save us from oppression and the second civil war to which it likely will otherwise lead.

well, the typical rule is that even if there is not severability clause they fall back on the default rule, which is:

“Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”

i think the mandate does fail that test, meaning that i don’t think congress could have passed these reforms without the mandate. but i am not sure the Supremes will see it that way.

I’ve been thinking about how to get an online petition rolling (not limited to online but hey) of people who are willing to commit in writing to REFUSE TO PURCHASE INSURANCE at the government command. Indeed, let’s not call it a petition, but a DECLARATION OF INDEPENDENCE!! I have no doubt that millions and millions of Americans would leap at the chance to sign such a pledge–what is Jug-ears going to do, put half of America in jail? If we can’t draw the line at this blatantly, plainly, not-even a good faith argument the other way unconstitutional power grab, we might as well all sell everything we have, send every penny generated to the crack-smoking Kenyan, strip naked, put the chains on ourselves, and head straight for the nearest plantation and ask where the Massah’s at.
ANY IDEAS–SOMEONE WITH A BULLY PULPIT PLEASE TAKE THIS AND RUN WITH IT!!

Not all of us are on Facebook–we need this to be something that, at a minimum, anyone with an internet connection can subscribed to without having to join a social network or special site, methinks. Thanks for the tip though.

With regard to “an invitation to unlimited federal intrusion in our daily lives,” allowing the federal government to pay for anyone’s health care is such an invitation. For if they’re footing the bill, why shouldn’t they also dictate healthy lifestyles to us? Our lifestyle is the #1 impact on health care costs. So the government can require us to take keep exercise and diet regimens.